Tag Archives | Necessary and Proper Clause

Civil Commitments: Necessary and Proper?

By on May 25, 2010 in Delegated Powers, Judiciary

Las Monday the Supreme Court in United States v. Comstock, held that Congress has the power under the Necessary and Proper Clause of Article I, Section 8 of the Constitution to enact 18 U.S.C. § 4248.

Section 4248 authorizes court-ordered civil commitment by the federal government of two categories of “sexually dangerous” persons: (1) “sexually dangerous” persons who are already in custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) “sexually dangerous” persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.

Justice Thomas in dissent makes a strong case that this civil commitment statute exceeds Congress’ powers inasmuch as it does not carry into execution any enumerated power. Thomas agrees the government may pass criminal laws to prohibit conduct that interferes with enumerated powers, establish prisons for those who engage in that conduct, and set rules for the care and treatment of prisoners awaiting trial or serving a criminal sentence. He gives the example of the postal clause and how it is necessary and proper to pass laws to protect the mails and to house defendants in federal prisons when they steal mail.

However, he denies a general police power where the government can keep an inmate in custody long after the inmate’s sentence has expired on the grounds that the inmate is sexually dangerous and might commit further crimes.

This, according to Thomas, cannot be traced back to an enumerated power. He urges that the commitment issue should be left to the state jurisdiction in which the defendant will be released. The opinions are worth a read.

cross-posted from the Independent Institute

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The Lehigh Valley Independent’s Tenther Coverage

By on April 27, 2010 in Media, The Opposition

Writing in the Lehigh Valley Independent, Jon Geeting uses Pennsylvania’s governor race to open a discussion about Tenth Amendment Advocacy.  It is difficult to excerpt from Mr. Geeting’s article without losing context, so I’ll suggest that you go read it.  It’s not very long.

In summary, Mr. Geeting uses the recent dust-up that arose when Attorney General Corbett referred to the Constitution as a “living document” to springboard into criticism of Congressman Rohrer for his support of the Tenth Amendment.  This seems to be the core of Mr. Geeting’s objection to Tenth Amendment Advocacy:

He [Rohrer] doesn’t believe in case law, and is constantly flouting an extremist view that the 10th Amendment means states have veto power over nearly any exercise of federal power.  His view of the Constitution is literal.  If the Framers didn’t explicitly write on the paper that we should have a national healthcare system, then we shouldn’t have one.  If the Framers didn’t write in Social Security, it’s unconstitutional.  It’s absurd.

So we’re to believe that Corbett is a main stream thinker and Rohrer is an extremist, because of his literal view of the Constitution.  Extremist?  If we follow the link to the Pennsylvania Independent that Mr. Geeting provided, we find Corbett quoted as saying,

Mr. Corbett said in response to Mr. Rohrer “I continue to maintain that the Constitution must be strictly adhered to and protected. …  My conviction that the Constitution must be upheld is so strong that I believe every piece of legislation, regardless of popularity or end result, must comply with this age tested document word for word.”

Judge for yourself, but I don’t see a whole lot of difference between Corbett’s “the Constitution must be strictly adhered to and protected” and “the Constitution is literal”, the view which Geeting attributes to Rohrer.  If both leading candidates from the Republican party hold this view, I think we can dispose of the slur, “extremist”.  Especially since Mr. Geeting’s article seems to imply that he views Corbett as a main stream thinker.

The reality is that the states have not just a right, but a duty, to nullify (or veto, as Mr. Geeting calls it) unconstitutional laws.  We have seen this, not just in theory and history, but also in recent practice.  Twenty five states have “vetoed” the unconstitutional REAL ID act and citizens in fourteen states have legal access to medical marijuana as a result of state laws that “veto” the federal marijuana laws within the states’ borders.  Is it extremist to observe actual activities which are continuing successfully in many states, even now?

Mr. Geeting closes his article with a straw-man description, excerpted from Think Progress, of what tenthers believe.  I can only wonder why he chose to go to Think Progress for a second-hand description.  It might have been more informative if, instead, he had run a few web searches and found a web site run by a real, live, tenther.  If Mr. Geeting had run a couple web searches, he might have instead closed with this excerpt from the Tenth Amendment Center,

The 10th Amendment doesn’t prohibit the feds from doing anything that “isn’t specifically spelled out in the Constitution” as this person claims, or as he’s saying other people claim. The 10th prevents the feds from exercising any power that hasn’t been delegated to it by We the People.”

While it may seem like an academic distinction, it certainly is not.  The Founders debated this issue in depth and wanted to make sure that the federal government wasn’t hamstrung, and unable to deal with changes the future would obviously bring.  So they called upon the Common Law doctrine of “principals and incidents” to ensure that government could adapt.

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Misunderstanding Necessary and Proper

By on September 30, 2009 in Constitution, The Opposition

In this video, you’ll see an example of a pretty common “rebuttal” to those of us who argue that the federal government is authorized to exercise only those powers which have been delegated to it.

This gentleman builds his position mostly off this statement, near the beginning of the video:

“the 10th Amendment prohibits the federal government from doing anything that isn’t specifically spelled out in the Constitution – end of argument”

He couldn’t be more wrong.

The 10th Amendment doesn’t prohibit the feds from doing anything that “isn’t specifically spelled out in the Constitution” as this person claims, or as he’s saying other people claim. The 10th prevents the feds from exercising any power that hasn’t been delegated to it by We the People.”

While it may seem like an academic distinction, it certainly is not.  The Founders debated this issue in depth and wanted to make sure that the federal government wasn’t hamstrung, and unable to deal with changes the future would obviously bring.  So they called upon the Common Law doctrine of “principals and incidents” to ensure that government could adapt.

This is found in Article 1, Section 8 of the Constitution, where Congress is empowered to make laws that are “necessary and proper” for carrying out the other listed powers of the Constitution.

What does this mean? It’s really quite simple. Continue Reading →

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Constitutional Wisdom from Randy Barnett

By on September 19, 2009 in Constitution, Health Care

I haven’t been too friendly to some of the solutions that Randy Barnett has offered for the problems we face, but – in regards to an original understanding of the purpose and intention of the Constitution, you’d be hard-pressed to find someone better.

His recent blog post over at Volokh, regarding his rebuttal at Politico.com to law professor Timothy Stoltzfus Jost, is just fantastic.  It’s on the so-called “constitutionality” of national health care.

Here’s a brilliant excerpt from Barnett:

The power “to regulate commerce . . . . among the several states”? This clause was designed to deprive states of their powers under the Articles to erect trade barriers to commerce among the several states. It accomplished this by giving Congress the exclusive power over interstate sales and transport of goods (subject to the requirement that its regulations be both “necessary and proper”). It did not reach activities that were neither commerce, nor interstate. The business of providing health insurance is now an entirely intrastate activity. Reduce…

The “spending power”? There is no such enumerated power. There is only the enumerated power to tax. Laws spending tax revenues are authorized, again, if they are “necessary and proper for carrying into execution the foregoing powers.” So we return to the previous issue: what enumerated end or object is Congress spending money to accomplish?

But following the text of the Constitution is so Eighteenth Century. Professor Jost tells us that “a basic principle of our constitutional system for the last two centuries has been that the Supreme Court is the ultimate authority on the Constitution, and the Constitution the Court now recognizes would permit Congress to adopt health care reform.” So the Supreme Court gets to rewrite the written Constitution as we go along.

Never mind Dred Scott, Plessy, Korematsu and other not-so-famous Supreme Court “mistakes.” The Constitution was what the Supreme Court said it was–until it changed its mind. And the Supreme Court has certainly not limited either the enumerated commerce power or the implied spending power to the original meaning of the text.

Read his full post here.  It’s definitely worth your time.

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